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Present: Jayewardene A.J. •
EXCISE INSPECTOR, POINT PEDRO, u. THANKAMMA.
720—P. C, Point Pedro• 1,075.
Search warrant—Presence of the occupant of the place searcked-^Metkodof effecting an entrance—List of articles seized—Criminal Pro-cedure Code, ss. 25-, 75i and 76.
In the execution of a search warrant under section 76 of theCriminal Procedure Code, the provision which requires the presenceof the occupant of the place searched or of- someone on his -behalfmust be strictly obeberved as a guarantee of the reality of the search.
. Where an Excise Inspector in' executing a Bearch warrant found,himself -unable to. gain entrance to a house, and sent one of hieofficers to ascend, the roof and let himself down,—
Held, that the method adopted was a violation' of the procedurelaid down in section 25 of the Criminal Procedure Code, whichrequires .the officer executing' the warrant 'to . "break open anyouter or inner door 11 in order to effect an entrance to such a place. *
The. terms of section 25 of the Criminal Procedure, Which requiresan officer to make & list of the things seized are imperative.
PPEAL from a conviction of an offence under section 43 (a)of the Excise Ordinance, No. 8 of 1912, of being in possession
of 'ganja. On a search warrant issued 'by ^ the Police Magistrate of.Point Pedro, the complainant, an Excise Inspector, entered and.searched the house of the accused, a woman, and found some- ganja -in a box in a wall and some wrapped hi a paper in a locked box. ..The accused was not .present at* the search*. The Excise Inspectorwent to the house accompanied by three sergeants.. When he foundthe accused absent and the house locked, he. sent one of his sergeants. -to go up the roof of the house. • The latter removed some of thecadjans and let himself down to the house and opened the door from:inside, when the ganja, it was alleged, was discovered* The defence.was that the ganja was introduced from' outside, and that thecircumstances under which the entry was made and the search.conducted enabled it to be done. The learned Police Magistrateconvicted' the accused, and sentenced her to pay a fine of Rs. 100. *
H. V. Perera, for accused, appellant.
January 23, 1925. Jayewardenb A.J.—
In this case the appellant has been convicted, of being in possessionof ganja, an offence punishable under section 43 (a) of the ExciseOrdinance, and sentenced to pay a fine of Rs. 100. Objection is *taken to the conviction on various grounds.
Jaybwab-DBHV A* J.
Exoiee Ins*pectohr, PointPedro, v.Tkawkomma
( 808 )
On a search warrant issued by the Police Magistrate of. PointPedro, the Excise Inspector says, he entered and searched the houseof the accused, who is a woman, and found ganja, some in a box ona wall and some wrapped in a paper in a box which was locked. Theaccused was not present at the search, and she says she was at Jaffnaon the day in question. The Excise Inspector went to the houseaccompanied by three Excise Sergeants and others. When he foundthat the house was locked, and the accused,, the occupant of the house,absent, he sent for the Yidane of Valvetty, who came up.. He thensent one' of his sergeants, Bamalingam, to the roof of the house.The-latter went up, removed some of the cad j axis and got down intothe house, and opened the door from inside. Then the Inspector’sparty entered the room and found a tin (C 1) containing six packetsof ganja on the eastern wall and some ganja wrapped up in a piece ofpaper in the box which was locked. The Inspect6r also says that1 hefound some pills, which he says are opium pills, but they do* not comeinto this case. The defence contends that the excisable articleshave been introduced from outside, and that the circumstancesunder which the entry was made and the search conducted enabledthis to be done.
Under section 37 of the Excise. Ordinance, the provisions of theCriminal Procedure Code relating to arrests, searches, and searchwarrants are applicable to all action taken in these respects in thecase of Excise offences. Now, section. 76 of the .Criminal ProcedureCode requires that the occupant of the place searched, or some personon his behalf, shall, in every case, be permitted to attend during the*-search. This rule is not one merely of technicality, but of substance,and its observance is necessary as a guarantee of the reality of thesearch. In the present case the occupant was hot in the house, -and the Excise Inspector said that his witness, Kandiah, whom heintended to call, but did not, in fact, call, would prove that she was inthe vicinity. The Inspector thinks she was keeping away throughfear. On this point I need only refer to what the learned PoliceMagistrate says in his judgment: “ The search warrant onlyempowers them to use reasonable force, if necessary. I do not con-sider that in this case force was necessary, •• • that it was reasonable.The party* could have well nigh waited til -e accused turned upand if she persisted in' not coming, could h :ft a watcher behind.The Inspector could have at any rate aj.. cached me and askedme if he should force open the house."
In the absence of Kandiah’s evidence, I do not think the Inspectorhas succeeded in proving that the accused was intentionally keepingaway from the premises. If the search party was unable to waittill the accused turned up, the steps indicated by. the learned Magis-trate should have been adopted before making the forcible entry.How was this entry effected ? Section 25 of the Criminal ProcedureCode, which is applicable to the execution of search warrants, lays
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down the procedure to be adopted where ingress to any plaoecannot be obtained. In order to effect an entrance into such place,the offioer executing the warrant iB entitled “ to break open anyouter or inner door of any place.'*
The provisions with regard to the execution of warrants of arrestand search warrants must be strictly observed, and this case is anillustration of the difficulties that arise by the failure to observethem strictly. In this case the Inspector, instead of breaking openthe door of the house, as he was bound to do, sent one of his officersto the roof and got him to remove Borne oadjans and then descendinto the room and open the door from inside. This is a dear violationof the procedure laid down in section 25. The procedure adoptednecessitated the offioer being in the room alone. The .time duringwhich he was there alone is said to be about five or ten minutes.The offioer in question had therefore every opportunity of introducingthe ganja into the plaoe wh*re it was discovered when .the door wasopened if he wanted to Ao so. This is what the defenoe allegeshappened in this instance. If the door had been broken open nosuoh opportunity would have been afforded, and the search wouldhave taken plaoe immediately in the presence of the Inspector.The Inspector might have adopted this procedure as he did notwish to oause more damage than was absolutely necessary, but suchsolicitude is misplaced, and his conduct is liable to be misconstrued.Further, there is no evidenoe that the person who was sent to enterthe room was searohed before he was sent up for the purpose. Noris there any evidenoe that any of the seven persons who accom-panied the Inspector, or the Inspector himself, was searohed beforeentering the room. This is an elementary precaution which shouldnever be overlooked. Ab proof of the fact that ganja had beenintroduced by the offioer who descended into the room, the defencepoints out the contradictions in the evidenoe as to the plaoe wherethe key of the box containing the ganja was found. On the firstday of the trial Excise Sergeant Ramalingam said the key of thebox was in the keyhole of the box.
On the second day of trial the Inspector said, that ExciseSergeant Khan found the key on the wall, Ramalingam contradictedhis previous statement and said the key was in another box, andSaravanamuttu, the Police Vidane of Valvetty, said the keys weretaken from a big box. According to this witness, Ramalingamwas in the room alone for ten minutes. The defenoe suggests thatthe plaoe where the key was found when the door was opened hasbeen changed from the keyhole, as originally admitted by Ramalin*gam, to another plaoe, to show that the introduction of ganja intothe box by Ramalingam was difficult, if not impossible. Further,the Inspeotor here violated another provision of the law with regardto the execution of searoh warrants, in that he failed to make a listof the things seized, as required by section 75. The terms of this
Jaybwab-DBNB A. J,
softs Ino-peofor, PointPedro v.Thankamma
Excise Ins-pector, PointPedro v.Thankamma
( 310 )
section are imperative. The learned Magistrate has taken a seriousview of the conduct of the Excise Inspector, but thinks theInspector does not deserve to be punished for his action as he hasacted from “ undue devotion to duty." However that may be, thequestion is, whether in the circumstances I have pointed out aboveit is safe to hold that possession of ganja by the accused has beenclearly proved. In my opinion, the grave irregularities in theconduct of the search, which afforded an apportunity for theintroduction of the prohibited article, seriously affect the creditto be attached to thej evidence of the discoveries said to have beenmade on such search.
While there is no proof that ganja was in fact introduced, Ihold that there was a possibility of its being introduced. That,I think, is sufficient to reuse a doubt with regard to the case forthe prosecution, the benefit of which must be given to the accused.
I accordingly set aside the conviction, and acquit the accused.
*Conviction set aside*
EXCISE INSPECTOR, POINT PEDRO, v. THANKAMMA